Zambrano v. Cardenas Markets, Inc.

Filing 45

ORDER Granting Defendant's 31 Motion to Dismiss. Plaintiff's 37 Motion for Partial Summary Judgment and Defendant's 38 Motion for Summary Judgment are Denied as moot. Plaintiff shall have 21 days from the date of this Order to file a second amended complaint. If Plaintiff chooses not to file a second amended complaint this case will continue with respect to the claim not dismissed by this order. Signed by Chief Judge Gloria M. Navarro on 8/10/2017. (Copies have been distributed pursuant to the NEF - SLD)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 FELICITAS ZAMBRANO, 4 Plaintiff, 5 vs. 6 7 CARDENAS MARKETS, INC., d/b/a CARDENAS, 8 Defendant. 9 ) ) ) ) ) ) ) ) ) ) Case No.: 2:16-cv-01659-GMN-NJK ORDER 10 11 Pending before the Court is the Motion to Dismiss, (ECF No. 31), filed by Defendant 12 Cardenas Markets, Inc. (“Defendant”). Plaintiff Felicitas Zambrano (“Plaintiff”) filed a 13 Response, (ECF No. 35), and Defendant filed a Reply, (ECF No. 36). For the reasons 14 discussed below, the Court GRANTS Defendant’s Motion. 15 I. BACKGROUND 16 This action arises from an incident that occurred while Plaintiff was visiting Defendant’s 17 market on July 17, 2015. (Am. Compl. ¶¶ 1–6, ECF No. 30). During this visit, Plaintiff alleges 18 that she stepped in a liquid substance and slipped, suffering injury. (Id.). Plaintiff alleges that 19 there was no warning sign for the liquid substance or other caution in the area. (Id.). 20 On December 6, 2016, Plaintiff filed her Amended Complaint alleging (1) negligence 21 and (2) negligent hiring, training, supervision, and retention. (Id. ¶¶ 7–8). In the instant 22 Motion, Defendant seeks to dismiss Plaintiff’s second cause of action. (Mot. to Dismiss 2:1–24, 23 3:1–15). 24 25 Page 1 of 5 1 II. 2 LEGAL STANDARD Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon 3 which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 4 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on 5 which it rests, and although a court must take all factual allegations as true, legal conclusions 6 couched as factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 7 12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements 8 of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain 9 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 10 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A 11 claim has facial plausibility when the plaintiff pleads factual content that allows the court to 12 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This 13 standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. 14 If the Court grants a motion to dismiss for failure to state a claim, leave to amend should 15 be granted unless it is clear that the deficiencies of the complaint cannot be cured by 16 amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant 17 to Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in 18 the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the 19 movant, repeated failure to cure deficiencies by amendments previously allowed, undue 20 prejudice to the opposing party by virtue of allowance of the amendment, futility of the 21 amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). 22 III. 23 DISCUSSION Defendant asserts that the Court should dismiss Plaintiff’s second cause of action 24 alleging negligent hiring, supervision, training, and retention because Plaintiff fails to provide 25 facts to support the claim. (Mot. to Dismiss 2:1–24, 3:1–15). Plaintiff contends that dismissal Page 2 of 5 1 is improper because the facts supporting her negligence claim also tend to support her negligent 2 hiring claim. (Resp. 5:4–19). Plaintiff also argues that dismissal is improper because her 3 requests for discovery give Defendant sufficient notice as to the facts of her second cause of 4 action. (Resp. 7:1–3). The Court will consider each of these arguments in turn. 5 A. Negligent Hiring, Training, Supervision, and Retention 6 In regards to hiring, Nevada employers “have a general duty to conduct a background 7 check on any potential employee to ensure that their employees are fit for their positions.” 8 Lambey v. Nevada ex rel. Dept. of Health & Human Services, No. 2:07-cv-1268-RLH-PAL, 9 2008 WL 2704191, at *3 (D. Nev. July 3, 2008). “An employer breaches this duty by hiring an 10 employee even though the employer knew, or should have known, of that employee’s 11 dangerous propensities.” Id. (internal quotation marks omitted). 12 In regards to negligent training, supervision, and retention, there are four elements: (1) a 13 general duty on the employer to use reasonable care in the training, supervision, and retention 14 of employees to ensure that they are fit for their positions; (2) breach; (3) injury; and (4) 15 causation. Id. at *4. 16 Here, Plaintiff does not allege that Defendant was negligent in conducting background 17 checks, nor does Plaintiff allege that Defendant knew or should have known that employees 18 working at the store may have had dangerous or negligent propensities. Plaintiff also provides 19 no factual basis to support the claim that Defendant breached its duty to “use reasonable care in 20 the training supervision, and retention of employees.” Id. In fact, Plaintiff’s only reference to 21 Defendant’s employment practices states that Defendant was negligent because it “failed to hire 22 responsible employees, failed to train their employees to keep the premises safe for customer 23 use, failed to supervise its employees and retained employees that displayed unsafe practices.” 24 (Am. Compl. ¶ 7). These allegations are legal conclusions couched as factual allegations and 25 are therefore insufficient to support Plaintiff’s second cause of action. See Twombly, 550 U.S. Page 3 of 5 1 at 555. Furthermore, a rote allegation that Defendant’s employees acted negligently is 2 insufficient to establish Plaintiff’s second cause of action. See Colquhoun v. BHC Montevista 3 Hosp., Inc., 2:10-cv-144-RLH-PAL, 2010 WL 2346607, at *3 (D. Nev. June 9, 2010) (stating 4 that “the fact that an employee acts wrongfully does not in and of itself give rise to a claim for 5 negligent hiring, training, or supervision”). 6 Plaintiff cites FGA, Inc. v. Giglio, 278 P.3d 490, 496-97 (2012), to claim that “Nevada 7 courts allow plaintiffs to recover under a mode of operation approach to premises liability.” 8 (Resp. 7:4–9). Not only did Plaintiff assert this approach for the first time in her Response to 9 this Motion, but also Plaintiff’s failure to allege sufficient facts in her Amended Complaint to 10 support her claim of negligent hiring, training, supervision, and retention renders this argument 11 ineffectual, regardless of the theory under which she alleges negligence. 12 Finally, Plaintiff’s request for discovery does not save Plaintiff’s claim. “To survive a 13 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state 14 a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks 15 omitted). Here, Plaintiff’s Amended Complaint fails to allege facts specifically indicating how 16 Defendant breached its duty. See Colquhoun, 2010 WL 2346607 at *3. Although Plaintiff 17 contends that the necessary facts for her claim are apparent in discovery, it remains that 18 Plaintiff has not pled the facts in the Amended Complaint, as required by Federal Rule of Civil 19 Procedure 8. Thus, Plaintiff’s second cause of action alleging negligent hiring, training, 20 supervision, and retention must be dismissed. See id. 21 B. Leave to Amend 22 Rule 15(a)(2) of the Federal Rules of Civil Procedure permits courts to “freely give 23 leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Ninth Circuit “ha[s] 24 held that in dismissing for failure to state a claim under Rule 12(b)(6), ‘a district court should 25 grant leave to amend even if no request to amend the pleading was made, unless it determines Page 4 of 5 1 that the pleading could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 2 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 3 1995)). 4 Here, the Court finds that Plaintiff can allege facts to support her second cause of action 5 for negligent hiring, training, supervision, and retention. Thus, leave to amend is appropriate. 6 Plaintiff shall have twenty-one (21) days from the date of this order to file her second amended 7 complaint. Failure to file a second amended complaint by the required date shall result in the 8 Court dismissing Plaintiff’s second cause of action with prejudice. 9 IV. 10 11 CONCLUSION IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, (ECF No. 31), is GRANTED. 12 IT IS FURTHER ORDERED that because Plaintiff is granted leave to amend her 13 Complaint, Plaintiff’s Motion for Partial Summary, (ECF No. 37), and Defendant’s Motion for 14 Summary Judgment, (ECF No. 38), are DENIED as moot. 15 IT IS FURTHER ORDERED that Plaintiff shall have twenty-one (21) days from the 16 date of this Order to file a second amended complaint. If Plaintiff chooses not to file a second 17 amended complaint, this case will continue with respect to the claim not dismissed by this 18 order. 19 10 DATED this _____ day of August, 2017. 20 21 22 ___________________________________ Gloria M. Navarro, Chief Judge United States District Judge 23 24 25 Page 5 of 5

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